Massachusetts Divorce Law
Divorce and Legal Separation in Massachusetts
Divorce and Legal Separation in Massachusetts
Massachusetts Divorce Basics
Massachusetts courts issue intermittent judgments of divorce nisi. In law, nisi means “to take effect unless”; a divorce decree nisi means the divorce will now go ahead unless something happens to stop it. A decree absolute comes later (usually after 90 days) and means that the divorce is then final.
To obtain a divorce in Massachusetts the parties must have formerly lived together as husband and wife in the state at some time. Generally, a divorce may not obtained for a cause which occurred in another jurisdiction, unless before the cause occurred the parties had lived together as husband and wife in Massachusetts and one of the parties lived in the state at the time when the cause occurred.
However, if the Plaintiff (filing party) has formerly lived in the state for one year and the cause occurred in the state; or if the Plaintiff lives within the state at the time of filing and the cause occurred in the state, a divorce may be granted for any cause allowed by law, unless it appears that the Plaintiff only relocated to Massachusetts in order to obtain a divorce.
An action for divorce shall be filed, heard and determined in the probate court in the county where either party lives, or if either party still resides in the county where the parties last lived together, then the action must be filed in that county.
In the event of hardship or inconvenience to either party, the court having jurisdiction may transfer the action for hearing to a court in a county where that party lives.
Filing for Joint no-fault Dissolution:
An action for divorce on the ground of an irretrievable breakdown of the marriage may be started by filing the following:
- A Petition signed by both joint Petitioners or their attorneys;
- A sworn affidavit that is either jointly or separately executed by the Petitioners that an irretrievable breakdown of the marriage exists; and
- A notarized separation agreement executed by the parties.
If the court does not approve the agreement as executed, or as modified by agreement of the parties, the agreement will become null and void and of no further effect between the parties; and the action for divorce will be dismissed without prejudice.
Filing for Non-Joint no-fault Dissolution:
An action for divorce on the ground of an irretrievable breakdown of the marriage may also be started by filing the Complaint without a signed statement and separation agreement of the parties. At least six months after filing the Complaint, there will be a hearing and the court may enter a judgment of divorce nisi if the court finds that there has existed for the period following the filing of the Complaint and up to the date of the hearing, a continuing breakdown of the marriage.
As part of the entry of the judgment of divorce nisi, appropriate orders shall be made by the court with respect to custody, support and maintenance of children, and in accordance with statutory provisions for alimony and the disposition of marital property.
The court granting a divorce may allow a woman to resume her maiden name or that of a former husband.
Legal Grounds for Divorce
3. Utter desertion continued for one year before filing of the complaint;
4. Gross and confirmed habits of intoxication caused by voluntary and excessive use of intoxicating liquor, opium or other drugs;
5. Cruel and abusive treatment;
6. A spouse being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable support and maintenance for the other spouse;
7. Either party has been sentenced to confinement for life or for five years or more in a federal penal institution or in a penal or reformatory institution in Massachusetts or any other state; and
8. Irretrievable breakdown of the marriage provided that a divorce shall be adjudged although both parties have cause.
No person may marry his/her:
- Parent or Stepparent;
- Parent's Sibling;
- Grandparent or Grandparent's Spouse;
- Grandchild or Grandchild's Spoue;
- Sibling or Sibling's Child; or
- Spouse's Parent, Grandparent, Child or Grandchild.
These prohibitions stand whether or not the marriage which created the familial relationship has been terminated by divorce or death.A marriage solemnized within the state which is prohibited by reason of blood relation or affinity through marriage between the parties, or bigamy, shall be void without a judgment of divorce or other legal process, with the following exception.
A marriage contracted while either party has a former living wife or husband is void unless the following is true:
- The subsequent marriage was contracted with due legal ceremony;
- The subsequent marriage was entered into by the already married party in good faith, in the full belief that he former spouse was dead, that the former marriage had been annulled by a divorce, or without knowledge of the former marriage;
- The impediment to the subsequent marriage has been removed by the death or divorce of the other party to the former marriage; and
- The parties to the subsequent marriage continue to live together as husband and wife in good faith on the part of one of them.
The following situations may render a marriage voidable:
- Either spouse was under the age of 18 when he/she entered into the marriage and did not obtain parental or judicial consent;
- One spouse lacked the mental capacity to marry;
- Either party entered into the marriage due to fraud regarding the essence of the marriage contract; or
- One spouse was under the influence of drugs or alcohol during the ceremony to the extent that he/she did not have the capacity to consent to the marriage.
Same-sex marriage is legal in Massachusetts. The same laws and procedures which govern heterosexual marriages also apply to same-sex marriages. There are no specific or special procedures for same-sex marriage.
Property Division and Alimony
Any real and personal property owned prior to the marriage will generally be considered the separate property of that spouse.
Upon the filing of an action for divorce by either spouse, the real and personal property of the other spouse may be attached to secure suitable support and maintenance to the receiving spouse and to any children that may be committed to his/her care and custody.
Upon divorce or upon a complaint in any action brought at any time after a divorce, a court with jurisdiction over both parties may make a judgment for either of the parties to pay alimony to the other. In addition to, or in place of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other, including all vested and non-vested benefits, rights and funds accrued during the marriage and which shall include retirement benefits, military retirement benefits if qualified under and to the extent provided by federal law, pension, profit-sharing, annuity, deferred compensation and insurance.
In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of any property to be assigned, the court, after hearing any witnesses of each party, shall consider the following factors:
- The length of the marriage;
- The conduct of the parties during the marriage;
- The age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party;
- The opportunity of each party for future acquisition of capital assets and income;
- The present and future needs of the dependent children of the marriage;
- The contribution of each party in the acquisition, preservation or appreciation in value of their respective estates; and
- The contribution of each party as a homemaker to the family unit.
Child Custody and Support/Maintenance
Upon a judgment for divorce, the court may make a determination regarding the care, custody and maintenance of the minor children of the parties and may determine which of the parents the children, or any of them, shall remain, or may award their custody to some third person, if it seems expedient or for the benefit of the children.
In making an order regarding child custody, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody. When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.
There shall be no presumption either in favor or against shared legal or physical custody at the time of the trial on the merits. At the trial on the merits, it the issue of custody is contested and either party seeks shared legal or physical custody, the parties, jointly or individually shall submit to the court a shared custody implementation plan setting forth the details of shared custody including the following:
- The child’s education;
- The child’s health care;
- Procedures for resolving disputes between the parties with respect to child-raising decisions and duties; and
- The periods of time during which each party will have the child reside or visit with him/her, including holidays and vacations, or the procedure by which such periods of time shall be determined.
The following custody arrangements may be awarded by a court:
- Sole Legal Custody – one parent has the right and responsibility to make major decision regarding the child’s welfare, including matters of education, medical care and emotional, moral and religious development;
- Shared Legal Custody – continued mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development;
- Sole Physical Custody – a child resides with and is under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child; and
- Shared Physical Custody – a child has periods of residing with and being under the supervision of each parent, provided that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.
No court shall make an order providing visitation rights to a parent who has been convicted of murder in the first degree of the other parent of the child who is the subject of the order, unless the child is of suitable age to signify his/her assent to such order, and also provided that until such order is issued, no person shall visit, with the child present, that parent without the consent of the child’s custodian or legal guardian.
Massachusetts uses the Income Shares Method to calculate child support obligations. It is based on the paying parent’s gross income and the number of children for whom support will be ordered. Acceptable deductions include child care costs, health insurance costs, dental/vision insurance costs, and support obligations paid for other children.
In determining the amount of the child support obligation or in approving the agreement of the parties, the court shall apply the child support guidelines established by the chief justice for administration and management. The court will only deviate from the guidelines if it finds that the amount of the order that would result from application of the guidelines would be unjust and inappropriate under the circumstances, and that the deviation is consistent with the best interests of the child.
The court may make appropriate orders of maintenance, support and education of any child who has attained age 18, but who has not attained age 21 and who lives in the home of a parent, and is principally dependent upon that parent for maintenance.
The court shall also make appropriate orders of maintenance, support and education for any child who has attained age 21 but who has not attained age 23, if the child lives in the home of a parent, and is principally dependent upon that parent for maintenance due to the enrollment of that child in an educational program, excluding educational costs beyond an undergraduate degree.
If, after a hearing, the allegations of an action for divorce are not proven and the facts warrant, the court may enter a judgment denying the divorce, but making a finding that the Plaintiff is living apart from the Defendant for justifiable cause, and may make an order regarding the support of either spouse and the care, custody of and maintenance of the minor children of the parties, as applicable.
Links to State Resources
- Divorce Forms
Divorce and Separate Support Forms and Instructions and Financial Statements and Child Support Guidelines Forms and Instructions, also Complaint for Annulment form and instructions.
- Massachusetts Domestic Relations Procedure Rule 4: Process
Text of Rules of Civil Procedure regarding service of civil complaints.
- Massachusetts General Laws, Part II, Title III, Chapter 208 - Divorce
Links to texts of Massachusetts laws that deal with Divorce.
- Massachusetts Probate and Family Courts
Massachusetts cities listed alphabetically with links to their corresponding Probate and Family Court Departments.
- Massachusetts Rules of Civil Procedure
Actions for divorce in the probate courts are commenced in accordance with the Massachusetts Rules of Civil Procedure applicable to domestic relations procedure.